Symposium March 16: Reflections on the Future of American Criminal Law

New Issue: Volume 112, Issue 3

March 25 Symposium: Qualified Immunity in Courts and in Practice

Inviting Submissions to JCLC Online, Our New Feature

Paying For a Clean Record

By: Amy F. Kimpel | May 14, 2022

Prosecutors and courts often charge a premium for the ability to avoid or erase a criminal conviction. Defendants with means, who tend to be predominantly White, can often pay for a clean record. But the indigent who are unable to pay, and are disproportionately Black and Brown, are saddled with the stigma of a criminal record. Diversion and expungement are two popular reforms that were promulgated as ways to reduce the scale of the criminal legal system and mitigate the impact of mass criminalization. Diversion allows a defendant to earn dismissal of a charge by satisfying conditions set by the prosecutor or court, thereby avoiding conviction. Expungement seals or erases the defendant’s record of arrest or conviction. Some diversion and expungement programs are cost-free, but most are not. Yet a criminal record carries its own costs. A criminal record can limit where an individual can live, go to school, and whether they receive public benefits. As 93% of employers conduct background checks on job applicants, the inability to avoid a criminal record can create barriers to employment and the accumulation of wealth. Costly diversion and expungement programs further calcify race and class divides, contributing to the construction of a permanent underclass. This Article examines the promises and pitfalls of diversion and expungement as means to combat mass criminalization. These two mechanisms work in tandem to provide access to a “clean record,” but not enough attention has been paid to the dangers they present due to differential access to clean records based on financial means. This Article considers legal challenges to the current schemes and explains how requiring defendants to pay for a clean record enables courts and prosecutors to profit from the perpetuation of racial caste. Ultimately, this Article argues that the impacts of diversion and expungement programs are more modest than reformers claim, and that these programs need to be offered at no cost if they are to succeed in achieving the goal of reducing racial disparities in our criminal courts and in society at large.

Cite as: Amy F. Kimpel, Paying For a Clean Record, 112 J. Crim. L. & Criminology 439 (2022).

Is Juvenile Probation Obsolete? Reexamining and Reimagining Youth Probation Law, Policy, and Practice

By: Patricia Soung | May 14, 2022

The dramatic growth of prison populations in the United States during the latter half of the twentieth century, as well as the problems of over-policing and police misconduct, have been well documented and decried. But the related expansion and problems of community supervision receive far less attention. Across the nation, reform efforts have increasingly included a focus on probation, especially juvenile probation, as an actor that both jails and polices youth in the community while also trying to rehabilitate them and promote their well-being. This Article studies the juvenile probation system, with a focus on California as one important system aiming to both surveil and care for individuals. It draws together two frameworks: 1) law and policy which describe the juvenile probation system as intended, and 2) juvenile probation practices and attitudes which reveal the day-to-day translation of the system’s formal intentions. Ultimately, where a system’s approach to rehabilitation and accountability become synonymous with or too reflexively able to adopt surveillance, containment, and punishment orientations, its ability to deliver meaningful help and support through that same system is improbable. Thus, this Article discusses the need in the United States to reform, dismantle, or replace probation with youth development-focused systems and uses Los Angeles as an example of a government already doing this important work.

Cite as: Patricia Soung, Is Juvenile Probation Obsolete? Reexamining and Reimagining Youth Probation Law, Policy, and Practice, 112 J. Crim. L. & Criminology 549 (2022).

Judicial Responses to Age and Other Mitigation Evidence: An Exploratory Case Study of Juvenile Life Sentences in Pre-Miller Cases

By: José B. Ashford, Katherine Puzauskas & Robert J. Dormady | May 14, 2022

This study describes how judges in Maricopa County, Arizona responded to age and other mitigation evidence in imposing “life” versus “natural life” sentences for juvenile offenders convicted of homicide in pre-Miller cases. Maricopa County was selected for this case study because of its history of adhering to “restrictive interpretations” of various kinds of mitigation evidence and because of the characteristics of this county’s local court community. The study employed a mixed-methods design consisting of a content analysis of relevant case documents and a quantitative analysis of the findings from the qualitative analyses of legal case documents. It examined 82% of the juveniles given natural life sentences and 72% of the juveniles given a sentence of life (25-to-life) in Maricopa County. The findings of this study indicated that judges referenced age as a statutory mitigating factor in 17% of both “life” and “natural life” cases, and age as a reason for the sentences imposed in 46% of both “life” and “natural life” cases. However, the age-relevant and other mitigating reasons referenced by judges lacked statistically significant associations with the sentences that the judges imposed. The only judicial reason with a statistically significant association with the imposed sentences was “emotional impact of the crime on the victim’s family.” The implications of this and other findings for “full responsibility” and “mitigation” approaches for blaming juvenile lifers were discussed, as well as the need for future research on post-Miller sentencing and resentencing processes.

Cite as: José B. Ashford, Katherine Puzauskas & Robert J. Dormady, Judicial Responses to Age and Other Mitigating Evidence: An Exploratory Case Study of Juvenile Life Sentences in Pre-Miller Cases, 112 J. Crim. L. & Criminology 593 (2022).